The Shaik family, buoyed by the Zuma judgment handed down on Friday, has started compiling grounds for a pardon application for their brother, Schabir.

Judge Chris Nicholson said in his judgment in the Pietermaritzburg high court that successfully prosecuting Shaik had apparently been an element of a politically driven strategy aimed at ultimately convicting Jacob Zuma.

Brothers Moe and Yunis Shaik are now preparing to petition President Thabo Mbeki to pardon Schabir. Yunis said yesterday: "The judge ruled that Schabir had been the victim of a stratagem; that he was the bait for the [National Prosecuting Authority] to catch the mackerel, a pawn in the game.

"Doesn't that make him eligible for a pardon? I think it does and we must set about petitioning the president. *1 Because of Schabir's ill-health, we can't afford to wait until Zuma is president."

Shaik is serving 15 years and is said by doctors to be "gravely ill" due to uncontrollable high blood pressure. He was jailed in June 2005, mainly because of his corrupt relationship with Zuma, now the ANC president.

Nicholson ruled that the national directors of public prosecutions' decisions, in June 2005 and December 2007, to prosecute Zuma were invalid and had to be set aside.

Overall, said Nicholson, during the past five years the behaviour of the three national directors of public prosecutions involved in the Zuma matters - Bulelani Ngcuka, Vusi Pikoli and Mokotedi Mpshe - "had not been independent and immune from executive interference", as it should have been. On the contrary, their behaviour had mostly been subject to "baleful political influence".

"Given Judge Nicholson's comments," said Moe, "every minute that Schabir stays on in jail is another minute of injustice."

Nicholson said that, because a decision was made to prosecute Shaik in 2003 and given that bribery was a "bilateral crime" and that there existed a prima facie case against Zuma, the decision not to prosecute Zuma had been "bizarre to say the least" - demonstrating that the then NDPP [national director of public prosecutions, Ngcuka] was not acting independently.

Nicholson also said that the plea bargain arranged by Ngcuka and Penuel Maduna, the then minister of justice, with Thint, the French arms manufacturer, which resulted in Thint also not being charged alongside Shaik, had been suspect.

Nicholson said that, first, Maduna should not have been involved at all with Ngcuka and, second, Thint had clearly been the "sprat" (a small sea-fish) used to catch "the mackerel" (Shaik) in a strategy aimed at eventually hooking Zuma. But, Nicholson said, prosecuting people for serious crimes was not a game and should be free of executive interference.

"Yet," the judge added, "the court has gained the impression that all the machinations to which I have alluded forms part of some great political contest or game.

"For years [Zuma] is under threat of prosecution for serious corruption and yet never brought to trial. There is a ring of the works of Kafka about this." [Czech writer Franz Kafka's The Trial is about a man, known only as Joseph K, who is arrested and finally executed for a crime, but never told what the crime is.]

Nicholson said that Ngcuka had said there had not been "undue political influence" in the decisions he made.

"[Ngcuka] should have said that there was no influence whatsoever. Pikoli was suspended by President Mbeki because of 'a breakdown in the relationship' between Pikoli and Brigitte Mabandla, the minister of justice. There should not have been a relationship at all [relating to prosecutorial decisions] between Mabandla and Pikoli."

He said that the president's sacking of Zuma from the deputy presidency in June 2005, based on the conviction of Shaik, a conviction which had not even been appealed yet, had been unfair and unjust. The judge said he had to assume that, because the president was the only person able to fire Zuma, that the subsequent charges against Zuma must have been known about by the "executive arm" of the government.

Mukoni Ratshitanga, the spokesman for the presidency, said yesterday that it was not aware of any fact that might have led Nicholson to conclude that the executive interfered with the investigation into Zuma.

He said it was "worth recalling" that neither the presidency nor the president was party to the proceedings and did not have an opportunity to make representations to Nicholson.

With acknowledgements to Jeremy Gordin and Sunday Independent.